CHANGE of Parties by Marriage, Death, &c. An action is not to abate by reason of 1. The death, 2. Marriage, or 3. Bankruptcy of any of the parties, if (a) The action survive or continue, and (i) The assignment, (ii) Creation, or (iii) Devolution of any estate or title pendente lite (Ord. 50, r. 1). In case of the 1. Marriage, 2. Death, 3. Bankruptcy, or 4. Devolution of estate by operation of law, of any party to an action, the Court or a Judge may, if it is deemed necessary for the complete settlement of all the questions in the action, order that the (a) Husband, (b) Personal representative, (c) Trustee, or (d) Other successor in interest, (if any) be made party to the action, or be served with notice thereof (Ord. 50, r. 2). Such notice to be in such manner and form, and on such terms as the Court or Judge may think just; and shall make such order for the disposal of the action as may be just (Ord. 50, r. 2)— Where by reason of 1. Marriage, 2. Death, 3. Bankruptcy, or CHANGE of Parties by Marriage, &c.-continued. 4. Any other event occurring after the commencement of an action, and causing A change or transmission of interest or liability; Or by reason of 5. Any person coming into existence after the commencement of the action, it becomes necessary or desirable that any person not already a party to the action should be made a party thereto in another capacity, an order that the proceedings be carried on between the continuing parties and such new parties may be obtained (Ord. 50, r. 4). [The Order may be obtained ex parte on application The Order so obtained is to be served upon (b) Their solicitors, and (c) Upon each new party, unless the Court or Judge otherwise directs (Ord. 50, r. 5). Every person served with such Order, who is not already a party to the action, shall be bound to enter an appearance within the same time and in the same manner as if he had been served with a writ of summons (Ord. 50, r. 5). Where any person who shall be served with such order is (a) Under no disability, or (b) Under no disability other than coverture, or (c) Under any disability other than coverture, but having a guardian ad litem, such person may apply to the Court or Judge to dis CHANGE of Parties by Marriage, &c.—continued. charge or vary such order within twelve days from the service thereof (Ord. 50, r. 6). Where any person being under any disability other than coverture, and not having had a guardian ad litem appointed, is served as aforesaid 1. Such person may apply to discharge or vary such order within twelve days from the appointment of a guardian or guardians ad litem, and 2. Until such period of twelve days shall have expired, the order is to have no force or effect as against such last-mentioned person (Ord. 50, r. 7). DISCONTINUANCE. The plaintiff may, by notice in writing (a) At any time before receipt of defendant's statement of defence, or (b) After the receipt thereof, before taking any other proceeding [Other than a mere interlocutory application], 1. Wholly discontinue his action, or 2. Withdraw any part or parts of his complaint (Ord. 23, r. 1). Upon such discontinuance the plaintiff shall pay the defendant's costs, or, if the action is not wholly discontinued, the defendant's costs of the matter so withdrawn (Ord. 23, r. 1). Such costs are to be taxed, and such discontinuance or withdrawal is not to be a defence to any subsequent action (Ord. 23, r. 1). [Save as above mentioned a plaintiff cannot with draw or discontinue without leave of the Court DISCONTINUANCE-continued. (c) Otherwise as may seem fit, and order the action to be discontinued, or any part of the claim to be struck out (Ord. 23, r. 1).] And the Court or Judge may (i) Upon the application of a defendant, and (ii) With the like discretion as to terms, order the whole or any part of the defence or counterclaim to be withdrawn or struck out (Ord. 23, r. 1). But a defendant may not withdraw his defence or any part thereof without such leave (Ord. 23, r. 1). [This Order 23 has the effect and force of an order of the Court or a Judge (Bolton v. Bolton, 3 Ch. Div. 276)]. Withdrawal after entry for trial.—When a cause has been entered for trial, it may be withdrawn by either plaintiff or defendant upon producing to the proper officer a consent in writing, signed by the parties (Ord. 23, r. 2). Costs of discontinuance.-A defendant may sign judgment for costs of an action if it is wholly discontinued, or for the costs occasioned by the matter withdrawn, if the action is not wholly discontinued (Ord. 23, r. 2a). QUESTIONS of Law. Special case. The parties may, after the writ of summons has been issued, concur in stating questions of law arising in the action in the form of a special case for the opinion of the Court (Ord. 34, r. 1). Every special case is to be divided into paragraphs numbered consecutively, and to state concisely such SPECIAL Case-continued. facts and documents as are necessary to enable the Court to decide the question raised by it (Ord. 34, r. 1). Upon the argument of such case, the Court and the parties shall be at liberty to refer to the whole contents of such documents, and the Court shall be at liberty to draw from the facts and documents any inference, whether of law or fact, which might have been drawn therefrom if proved at a trial (Ord. 34, r. 1). In addition to the above, if it appears that there is in any action a question of law which it might be convenient to have decided before any evidence is given, or any question or issue of fact is tried, or before any reference is made to a referee or arbitrator, an order may be made for such point of law to be raised for the opinion of the Court or otherwise (Ord. 34, r. 2). Every special case is to be (i) Printed by the plaintiff; (ii) Signed by the parties, or their solicitors; (iii) Filed by the plaintiff; and printed copies for the use of the Judges are to be delivered by the plaintiff (Ord. 34, r. 3). Where (a) A married woman, (b) Infant, or (c) Person of unsound mind, is a party to an action, no special case shall be set down for argument without leave (Ord. 34, r. 4). The parties to a special case may, if they think fit, enter into an agreement in writing [which is not to be subject to stamp duty], that, on the judgment being given in the affirmative or negative, a sum of money, (a) Fixed by the parties; or (b) To be ascertained by the Court; or (c) In such manner as the Court shall direct, shall be paid by one of the parties to the other, either with or without costs (Ord. 34, r. 6). |